- 1 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF JULY, 2025 BEFORE THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR FIRST APPEAL NO. 499 OF 2022 (PAR) BETWEEN: 1. SYED JALAL SINCE DEAD BY HIS LRS MRS. SHANAZ BEGUM W/O LATE SYED JALAL AGED ABOUT 67 YEARS 2. MR. SYED MUJAMMIL S/O LATE SYED JALAL AGED ABOUT 35 YEARS 3. MRS. TABASSUM SULTANA D/O LATE SYED JALAL AGED ABOUT 39 YEARS 4. MRS. SHABANA BEGUM D/O LATE SYED JALAL AGED ABOUT 37 YEARS 5. MRS. SEEMA SULTANA D/O LATE SYED JALAL AGED ABOUT 33 YEARS ALL ARE R/AT NO.26 MASJID STREET, NEELASANDRA BANGALORE-560 047. …APPELLANTS (BY SRI. IMRAN PASHA, ADVOCATE) Digitally signed by AL BHAGYA Location: HIGH COURT OF KARNATAKA - 2 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 AND: 1. MR. SYED REHMAN @ SARDAR S/O LATE SYED PEERAN SAHEB AGED ABOUT 72 YEARS 2. MR. SYED IBRAHIM S/O LATE SYED PEERAN SAHEB AGED ABOUT 62 YEARS 3. MRS. KHAMARUNNISSA S/O LATE SYED PEERAN SAHEB AGED ABOUT 65 YEARS 4. MRS. RAHAMATHUNNISSA D/O LATE SYED PEERAN SAHEB AGED ABOUT 62 YEARS 5. MRS. KHAIRUNNISSA D/O LATE SYED PEERAN SAHEB AGED ABOUT 64 YEARS 6. MRS. MEHERUNNISSA D/O LATE SYED PEERAN SAHEB AGED ABOUT 60 YEARS 7. MRS. ZAHOORUNNISSA D/O LATE SYED PEERAN SAHEB AGED ABOUT 57 YEARS 8. MRS. GULAB JAN D/O LATE MAQBOOL JAN AGED ABOUT 42 YEARS R1 TO R8 ARE R/AT NO.26 MASJID ROAD, NEELASANDRA BANGALORE-560 047. 9. MR. MOHAMMED AFSAR S/O LATE MOHAMMED KHASIM - 3 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 AGED ABOUT 58 YEARS R/AT NO.33, MASJID ROAD NEELASANDRA, BANGALORE-560 047. …RESPONDENTS (BY SRI. SYED KHALEEL PASHA, ADVOCATE FOR C/R9; V/O/D 13.06.2022 NOTICE TO R1 TO R8 IS DISPENSED WITH) THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.01.2022 PASSED IN OS No.26874/2010 ON THE FILE OF THE LVII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU, DISMISSING THE SUIT FOR PARTITION. THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM ORAL JUDGMENT Captioned appeal is by the unsuccessful plaintiffs challenging the judgment and decree rendered in O.S.No.26874/2010 wherein plaintiffs' suit seeking declaration, partition and separate possession of the suit schedule property is dismissed by the trial Court. - 4 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 2. For the sake of convenience the parties are referred to as per their rank before the trial Court. 3. The facts of the case are as under: The plaintiffs are the legal heirs of the original plaintiff, late Syed Jalal. The original plaintiff instituted the present suit seeking partition and a declaration that he is a co-owner of the suit schedule property along with his father, Syed Peeran, and elder brother, Syed Ahmed. According to the original plaintiff, the suit schedule property was jointly purchased by the three co-owners under a registered sale deed dated 16.01.1950. On that basis, he claimed a 1/3rd share in the property. It was his specific case that, excluding his own 1/3rd share, he was entitled to seek partition of the remaining portion held by his father and brother. The suit was further founded on the allegation that defendant No.1, in collusion with the other defendants, concocted a document styled as a Hiba dated 21.09.1998, which the original plaintiff contended was not binding on him. The plaintiffs alleged that - 5 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 defendant No. 1 had subsequently sold the suit schedule property to defendant No.9 under a registered sale deed dated 04.10.2004. 4. Despite service of summons, defendants 1 to 8 failed to appear before the trial Court and were consequently placed exparte. Defendant No.9, who claimed to be the purchaser of the remaining 2/3rd share of the property, contended that the original plaintiff along with the other family members had orally gifted the entire property to defendant No.1 by way of Hiba, which was later confirmed on 21.09.1998. On the strength of the said gift, defendant No.1 had executed a registered sale deed in favour of defendant No.9 on 04.10.2004. 5. Based on the rival pleadings, the trial Court framed issues and both parties led oral and documentary evidence. While answering Issue No.3 in the affirmative, the trial Court recorded a finding that defendant No.9 had succeeded in establishing that the original plaintiff and his - 6 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 family members had orally gifted the property to defendant No.1 on 15.03.1998 and that the oral Hiba was confirmed by a written memorandum dated 21.09.1998, which was marked in evidence as Ex.C1. The trial Court also answered Issue No.6 in the negative, holding that there was suppression of facts by the original plaintiff, particularly in relation to documents marked as Exs.P7 and P8. It found that the original plaintiff had selectively challenged only the Hiba dated 21.09.1998 while concealing other relevant facts. Ultimately, the trial Court concluded that the original plaintiff, along with other family members, had executed a valid Hiba on 21.09.1998 and dismissed the suit. 6. Heard the learned counsel appearing for the plaintiffs as well as the learned counsel for defendant No.9. This Court has independently assessed the pleadings, oral testimony, and documentary evidence on record. - 7 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 7. The following points would arise for consideration: "(i) Whether the trial Court erred in answering Issue No.2 in the negative by holding that the plaintiffs and defendants 1 to 7 failed to establish that they had inherited the shares of Syed Peeran and Syed Ahmed in the suit schedule property, excluding the 1/3rd share held by the original plaintiff? (ii) Whether the finding of the trial Court that the original plaintiff and other family members had executed a valid Hiba in favour of defendant No.1, thereby conferring a saleable title on defendant No.1, and consequently validating the sale deed dated 04.10.2004 executed in favour of defendant No.9, is perverse, patently erroneous, and calls for interference? (iii) What order?" - 8 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 FINDINGS on Point Nos.(i) and (ii): 8. Upon a careful examination of the records, it is not in dispute that the suit schedule property was jointly purchased by the original plaintiff, Syed Jalal, along with his father, Syed Peeran, and his brother, Syed Ahmad, under a registered sale deed dated 16.01.1950. The original plaintiff instituted the present suit seeking partition and separate possession of his share, claiming succession to the estate of his deceased father and unmarried brother, both of whom are stated to have died intestate. In support of his claim, the plaintiff has specifically assailed the validity of the alleged confirmation of gift (Hiba) dated 21.09.1998, purportedly executed by himself and other family members in favour of defendant No.1, contending that the same is a fabricated and concocted transaction. He has further sought a declaration that the subsequent registered sale deed executed in favour of defendant No.9 is collusive, not supported by lawful title, and is not binding on him. - 9 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 9. In this context, paragraphs 7 and 8 of the plaint are of considerable relevance, as they form the foundation of the plaintiff’s claim over the remaining 2/3rd share in the suit schedule property being the very portion that is claimed to have been gifted under the impugned Hiba and subsequently alienated in favour of defendant No.9. These pleadings are central to assessing the nature of the plaintiff’s challenge and the legitimacy of the alleged gift and sale. Accordingly, paragraphs 7 and 8 of the plaint are extracted below: "7. The Plaintiffs submit that he totally illiterate and is unable to read or write in English or Kannada Language. Taking advantage of the situation the Defendant No.1 has hatched a Plan to grab the entire suit schedule property and there by created a Hiba dated 21st Day of September 1998 copy of the same is produced herein as Annexure-B for the kind perusal of this Hon'ble Court. 8. The Plaintiffs submit that, the Hiba stated above is prepared in active collusion with other Defendants, in reality the Defendant No.8 has no right, title or interest of what so even nature over the suit schedule property. Further the Plaintiffs submit that, as - 10 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 per the said Oral Hiba Schedule "A" Property Assigned to the Defendant No.1, out of the entire suit schedule Property, the portion so allotted to the Defendant No.1 in active collusion with other Defendants measures to an extent of 1347 sq.ft. which is totally illegal and against the principles of Muslim Succession under Mohammedan Law." 10. It is a well-settled principle of law that a party alleging that a document is concocted or fabricated bears the burden of proving such allegation through cogent and credible evidence. In the present case, the plaintiffs, while questioning the validity of the oral gift (Hiba) dated 21.09.1998, have not discharged this burden. Except for examining P.W.3 who claimed to be acquainted with the Urdu language,no substantive evidence has been adduced to establish that the Hiba set up by defendant No.1 is a fabricated or concocted document. On the contrary, the admissions elicited during the cross-examination of the original plaintiff have a decisive bearing on the controversy regarding the genuineness of the Hiba marked at Ex.C1. During cross-examination, the plaintiff - 11 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 unequivocally admitted that his brothers or other family members had not committed any act of forgery in relation to the said Hiba. This admission strikes at the very root of the plaintiff’s case. It is a clear, unambiguous, and conclusive statement that negates the foundational plea of fabrication and renders the challenge to Ex.C1 unsustainable. 11. Once P.W.1, the original plaintiff, candidly admits that no forgery was committed by his family members, the attempt to cast doubt on the genuineness of the Hiba through the testimony of P.W.3 loses its force. The argument that the Hiba is invalid on the ground that the signature on the Urdu document does not belong to the plaintiff, and instead bears the name "Safat Jalal," fails to shake the credibility of Ex.C1. This plea appears to be a mere afterthought, lacking substantive corroboration. The plaintiff’s own admission that there was no forgery by his family members renders the evidentiary value of P.W.3's testimony ineffective in discrediting the Hiba. - 12 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 12. Further, the defendants have succeeded in eliciting a significant factual admission from the plaintiff that he is in possession of only 440 sq. ft. of the suit schedule property. This admission directly contradicts the plaintiff’s broader claim over the entire extent of the property. Despite this clear acknowledgment, the plaintiff has attempted to plead ignorance regarding the records pertaining to the remaining portion of the property. Such selective assertions and evasive responses weaken the credibility of the plaintiff’s claim to possession and undermine his overall case. 13. The credibility of the original plaintiff has also been tested and undermined during his cross-examination. When confronted with a specific suggestion regarding an affidavit filed in support of I.A. No.7, the plaintiff claimed ignorance. Notably, he admitted that he was unable to read the affidavit filed as his examination-in-chief. However, in the latter part of his testimony, he conceded that the katha in respect of the suit schedule property - 13 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 does not stand in his name. These admissions cast serious doubt on the plaintiff’s knowledge, control, and authority over the suit schedule property. 14. The plaintiff’s challenge to the oral Hiba and its subsequent confirmation under Ex.C1 stands on weak footing, particularly in light of the unequivocal admissions made by the other family members who are signatories to the confirmation deed. All the remaining signatories, except the plaintiff, have categorically affirmed the execution and validity of the Hiba, thereby lending strong credence to its genuineness. The plaintiff stands alone in his attempt to repudiate the oral Hiba, a stance that appears not only isolated but also inconsistent, especially when viewed alongside his own admission that no forgery was committed by his family members. This solitary denial, unsupported by any cogent evidence and contradicted by the collective acknowledgment of the other signatories, significantly undermines the plaintiff's credibility and renders his challenge to Ex.C1 untenable. - 14 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 15. The conduct of the original plaintiff further reveals inconsistencies that detract from his claim. The plaintiff has asserted in the plaint that he is entitled to a share in the 2/3rd portion of the suit schedule property through succession, upon the demise of his father and unmarried brother. However, the records disclose that the plaintiff had earlier attempted to deal with the entire suit schedule property as though he were its absolute owner. Exs.P7 and P8 documents executed by the plaintiff reveal that he made an attempt to bequeath the entire property to his wife, son, and daughter through a Will. Notably, these documents are not even referred to in the plaint. This deliberate suppression assumes significance, as the execution of these Wills runs contrary to the plea of the plaintiff that he is only claiming a share in the property. The execution of Exs.P7 and P8 demonstrates that the plaintiff was attempting to assert absolute ownership over the entire property, including the remaining 2/3rd share, thereby exposing a clear inconsistency in his case. - 15 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 16. In light of these significant facts and admissions, the trial Court has rightly dismissed the suit. The records clearly establish that the remaining 2/3rd share in the suit schedule property was transferred to defendant No.1 by way of a voluntary oral gift made by the original plaintiff and other family members. This gift was subsequently confirmed through a deed marked as Ex.C1. The original plaintiff has failed to prove that he acquired the remaining 2/3rd share by way of succession from his deceased father and brother. Consequently, defendant No.1, having received the property through a valid gift, had a saleable title. Defendant No.9, as the purchaser under a registered sale deed dated 04.10.2004 executed by defendant No.1, has therefore become the absolute owner of the said 2/3rd share. Accordingly, Points No.1 and 2 are answered in the negative. - 16 - HC-KAR NC: 2025:KHC:28979 RFA No. 499 of 2022 FINDING ON POINT No.(iii) 17. In the light of the findings recorded on points (i) and (ii), this Court is of the view that the appeal is devoid of merits and accordingly, the appeal is dismissed. Sd/- (SACHIN SHANKAR MAGADUM) JUDGE ALB List No.: 1 Sl No.: 47